February 26, 2010

On Capitol Hill, DOJ Official Defends Decision on Torture Memos

Lawmakers got their first chance Friday to question the U.S. Justice Department about its decision not to pursue disciplinary action against the Bush-era lawyers who authored legal opinions on the use of torture.

At a hearing of the Senate Judiciary Committee, senators of both parties praised the work of the career Justice Department lawyer, David Margolis, who made the decision. Yet they emphasized different parts of Margolis’ 69-page memo — Republicans noting that Margolis cleared the lawyers of professional misconduct, Democrats noting that Margolis nevertheless criticized the judgment and work of those lawyers.

Lawmakers called for at least two further inquiries. Sen. Patrick Leahy (D-Vt.), the committee’s chairman, said he wants to know what happened to missing e-mails of one of the lawyers in questions, John Yoo, who is now a law professor at the University of California at Berkeley. Sen. Jeff Sessions (R-Ala.), the committee’s top Republican, said he wants to know who in the Justice Department leaked internal deliberations about possible discipline to the media.

Acting Deputy Attorney General Gary Grindler told the committee that he and the rest of the department’s leadership are confident in the decision Margolis made. Grindler said he knew of no instance in which the department’s political appointees overturned the conclusion of a career official in an ethics case, and he noted Margolis’ extensive experience in the department.

“His lengthy service as a career attorney who has served administrations of both parties makes Mr. Margolis uniquely qualified to decide matters of this sensitivity on the merits without fear or favor,” said Grindler, a former partner at King & Spalding.

At the same time, Grindler joined Democratic senators in rebutting suggestions that Margolis’ decision validates the legal opinions written by Yoo and by Jay Bybee, who is now a judge on the U.S. Court of Appeals for the 9th Circuit. Grindler said there has been a “shared conclusion” among department lawyers of both parties, including former Attorney General Michael Mukasey, that the legal opinions were flawed.

A report by the Justice Department’s Office of Professional Responsibility on Bybee and Yoo’s work mentioned eight legal opinions regarding interrogation and other national security policies. Grindler testified today that the department has officially withdrawn seven of those opinions, and that an executive order from President Barack Obama blocks enforcement of the eighth.

Leahy told Grindler to report back to the Judiciary Committee on the search for Yoo’s missing e-mails. Leahy said the situation reminds him of his unsuccessful attempts to obtain documents from the Bush administration. “We were always told that the information wasn’t there. We couldn’t get it. Then, we would eventually get it in the newspapers after it was leaked by the Bush administration,” he said.